Messages - Ever

3L from Southern Methodist University with close friends at Baylor and the University of Texas - I'll answer whatever randomness you have. Taking a break from exams for a bit. Always loved it when 3L's came through to give advice when I visited these boards three years ago (!), so I thought I'd return the favor to the community.

Patent Law would free up my Fridays, but I would be staying until 7:15PM everyday. Land Use would have me "home" (out of class) by 4:30 on Mondays and Wednesdays, but it would be my only class on Friday (at 10:00 AM). Both professors are great.

A former alum of the University of Oklahoma posts on a student web forum that he is interested in purchasing tickets to the Oklahoma Texas football game. An student contacts him through email that he has four tickets available to him, but he does not know precisely what location in the stadium the tickets will be. The two agree upon a price scale: if the tickets are in the end zone the alum will pay $250 each, if they are on the 50 yard line they will be sold for $300 each. The alum has turned down other offers regarding tickets. When the tickets are picked up by the student they are on the 50 yard line. The student refuses to sell the tickets citing that they are being bought for twice that amount. Does the alum have a case against the student?

Facts:1) Two dogs owned by the plaintiff and defendant were fighting2) Defendant was striking the animals with a four (4) foot stick in order to intervene in their fight3) Plaintiff (Brown) was standing about a rodís distance from the animals (roughly 15 feet) and moved a step or two in their direction4) The brawl moved closer to the plaintiff5) The defendant (Kendall) retreated from the animals striking them as he moved backwards6) In the course of the defendants retreat he brought his stick over his shoulder in order to strike the animals again and in doing so hit the plaintiff in the eye causing serious injury.7) During the trail the defendant requested that the jury be instructed in the following way and was denied on both accounts. a. If both men were using the same level of care or the defendant was using a higher level of care, then the plaintiff could not recover.b. ďÖthe burden of proof on all of these propositions was on the plaintiff.Ē8 ) Instead the judge instructed the jury that, among other things, if the defendantís actions were unnecessary then the burden of proof of extraordinary care on the part of the defendant, or want of care on the part of the plaintiff, was on the defendant.

Point(s) of Appeal: (1) Defendant is appealing the verdict based on the instructions given to the jury that the defendant has the burden of proving he was exercising due care.∑ The judge instructed the jury that if the defendantís actions to separate the animals were lawful and he was exercising ordinary care then he is not liable. However if those actions were not lawful he is liable, unless he was using extraordinary care. The judge instructed the jury further that if the plaintiff was not exercising ordinary care then the defendant was not liable. Lastly and the position which the defendant objected: if the defendantís actions were unnecessary then the burden of proof of extraordinary care on the part of the defendant, or want of care on the part of the plaintiff, was on the defendant.

Issue before the Court: (1) Is the burden of proof of the plaintiffís negligence on the defendant? (2) Does it matter whether or not the defendantís actions in attempting to intervene were lawful or unnecessary?

Court Ruling: Verdict reversed, new trial ordered.

Reasons: The Court found that the plaintiff must show that the defendantís intentions were unlawful or that the defendant was in fault. There was no reason why the instructions asked for by the defendant should not have been given to the jury. If these conditions cannot be proven then the plaintiff cannot recover. The Court also found that it did not matter whether or not the defendants actions were necessary, the only issue which mattered was whether the actions taken were lawful, which they were.